INTRODUCTION
A Will is a legal document written by a person in favor of others to whom he wants his property or estates should belong after his death. In India, the minimum age to make a Will is 21 years. The person who makes Will is known as the testator. The testator has the right to nullify or invalidate or change the Will at any moment during his lifetime. As stated in Hindu law, a Will cannot be made in the name of an unborn person.
In accordance with Section 2(h) of the Indian Succession Act, 1925, “Will means the legal declaration of the intention of a testator with respect to his property which he desires to be carried into effect after his death.”[1]
As per Section 74 of the Indian Succession Act, “Wording of will: It is not necessary that any technical words or terms of art be used in a Will, but only that the wording be such that the intentions of the testator can be known therefrom.”[2]
ADVANTAGES OF MAKING A WILL
- The will helps in minimizing the conflicts between the family members over the property and even if the conflict pop-up, the beneficiary has the legal document on his side.
- The testator can make his estates belong to the person he wishes which otherwise will be shared equally among all the heirs.
- There may be a chance where the heirs are unaware of some of the properties owned by the testator. This can be solved when the testator makes the Will, as it contains all the details of the properties owned by the testator.
- If the testator writes a will, then there will be no chance for fraudulent claims after the testator’s death.
WHO IS COMPETENT TO MAKE A WILL?[3]
- The testator shouldn’t be an individual of unsound mind.
- The testator should make the will voluntarily without any undue influence or coercion.
- The essence of the will should be thoroughly understood by the testator.
- The testator must be a major
Mandatory information to be included in a will:[4]
- Basic information of the testator such as the full name, address, etc.,
- Declaration of the testator that he is in sound mind and fully aware of the essence of the will.
- The details of the testator’s family
- The reason behind making the Will
- The date and day on which the Will is made
- The name(s) of the beneficiary/ beneficiaries along with their relationship with the testator
- Executor’s name
- The testator’s signature along with the signatures of two witnesses
CAN A MINOR BE A BENEFICIARY?
Yes, a Will can be written in favor of a minor. But while doing so, the testator has to mention a guardian to supervise the property till the beneficiary reaches the age of majority. And in such a case the age of the guardian should be 21 years or above.
THE EXECUTOR OF THE WILL AND HIS/HER ROLE
The Executor of the Will is a person whom the testator trusted and given the responsibility to execute his “will” after his death. The Executor is given the choice to accept or decline the roles and obligations given as an executor. The role of the executor is absent while drafting the Will. His role is to dispose of the Will of the testator as per the desires of the deceased testator. If the testator did not mention any executor in the Will, then a person (administrator) will be appointed by the competent authority to perform Executor’s role.
THE NECESSITY OF THE REGISTRATION OF WILL
The registration of the will is not mandatory; the Will made by the testator on a white paper is also enforceable. But it is preferable to get registered. If the testator is alive, the Will should be registered by him. If the testator passed away, the registration should be done by the executor. If the testator modified the Will after the registration, the recent Will needs to be registered again so that the claims like Will was modified due to coercion can be prevented.
TYPES OF WILL
Privileged Will: A Will in which the testator is a soldier, airman, or mariner. Section 65[5] and section 66[6] of the Indian Succession Act deals with this type of Wills.
Unprivileged Will: A Will made by a person other than the three mentioned in privileged Will. Section 63[7], Section 70[8], Section 71[9], Section 72[10] , and Section 73[11] of the Indian Succession Act deal with this type of Wills.
Conditional or Contingent Wills: A Will that is written in such a manner that it only takes effect if specific criteria are met.
Joint Will: These Wills are usually made by couples. In this type of Will, a single will is made by two or persons. They will come into effect after the death of all the testators.
Concurrent Wills: Concurrent wills are two or more wills written by a single person.
Duplicate Wills: Two wills are made by the testator with the same contents for the purpose of safety
Holograph Wills: A Will made by the testator in his/her own handwriting
CONCEPT OF WILL UNDER MUSLIM LAW
Indian Succession Act of 1925 is applicable only to non-Muslims. The directives of making a Will for Muslims are contained in the Muslim Law. As the Will is governed by the Quran, Muslims consider it as a holy thing. They are given the opportunity to modify Succession law to a certain extent. Under Muslim law, only a Muslim who is major and having enough mental capacity is competent to make a Will. Up to one-third of the entire property, a Muslim has the liberty to in the favor of any person he/she wishes. If a Muslim wants to make a Will for more than one-third of his entire property in the name of a person other than the lawful heirs, then the acceptance of the lawful heirs is mandatory.
CONCLUSION
Will is one of the best gifts offered by Law. It gives an opportunity to an individual to make his property belongs to a person he/she wishes. One has a choice to make multiple Wills, because of this a person can make different Wills for different properties owned by him. One of the finest features of the Will is that it may be easily revoked at any moment as per the testator’s choice. If the provision of Will is absent, then any individual should be bound to the procedure mentioned in the Law of Succession even though he/she does not have consent.
Author’s Name: Kethana Tamminaina (Damodaram Sanjivayya National Law University, Visakhapatnam)
[1] Indian Succession Act 1925, s 2(h)
[2] Indian Succession Act 1924, s 74
[3] Gordon W. Brown, Administration of Wills, Trusts, and Estates (1st edn, Delmar learning 2003)
[4] Alexander A. Bove, Wills, Trusts, and Estates (7th edn, Aspen 2005)
[5] Indian Succession Act 1925, s 65
[6] Indian Succession Act 1925, s 66
[7] Indian Succession Act 1925, s 63
[8] Indian Succession Act 1925, s 70
[9] Indian Succession Act 1925, s 71
[10] Indian Succession Act 1925, s 72
[11] Indian Succession Act 1925, s 73
